No. 84-288
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
ARTHUR WASSBERG,
Claimant and Respondent,
ANACONDA COPPER COMPANY, a/k/a
ANACONDA MINERALS CO. , Employer,
and
ANACONDA COPPER COMPANY, a/k/a
ANACONDA MINERALS CO.,
Defendant and Appellant.
APPEAL FROM: The Workers' Compensation Court, The Honorable Timothy
Reardon, Judge presiding.
COUNSEL O F RECORD:
For Appellant:
Michael J. McKeon, Anaconda, Montana
For Respondent :
Leonard Haxby, Butte, Montana
Submitted on Briefs: 1Jov. 29, 1984
Decided: April 2, 1985
Filed:
- ---
Clerk
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
This is an appeal from an order of the Workers' Compen-
sation Court, holding that the employer-defendant was es-
topped from asserting the one year statute of limitations
provided in section 39-71-601, MCA as a bar to claimant's
request for compensation under the Workers' Compensation Act.
We reverse.
The facts leading to this appeal are as follows: The
claimant, Arthur Wassberg was employed by the Anaconda Compa-
ny as an underground miner on an intermittent basis from 1956
to 1981, with one three year period in the Army, and numerous
other interruptions apparently due to claimant's own choice.
On June 30, 1973, claimant suffered an injury when he
"was putting in stulls and [he] fell off the ladder and
twisted [his] back." He reported this accident to his shift
supervisor and went to a local chiropractor, Dr. West, for
treatment. The Anaconda Compa-ny paid all of the bills for
this treatment. The claimant also filed a "Claim for
Compensation" under the Workers' Compensation Act. In that
claim, he reported that he had suffered prior industrial
injuries to his head, back and hips.
At trial, claimant testified that he missed three days
of work after the 1373 accident. His work records admitted
into evidence included vouchers, signed by the claimant, that
indicate that he missed work and received compensation for
more than three weeks. In the July 17, 1973 "Claim for
Compensation" claimant filed for the June 30, 1973 accid.ent,
he certified that he was "still off." In any event, the
record shows that claimant received approximately three weeks
of temporary total benefits under the Workers' Compensation
Act; from July 2, 1973, to July 23, 1973.
Claimant returned to work on July 23, 1973. On July
22, 1974, he had another accident. A rock fell from a hang-
ing wall and struck claimant on the back, knocking him over.
He reported the accident to his boss, Cliff Newstrand, who
filled out a written "Report of Alleged Injury." On the
report Newstrand stated that he did not advise Wassberg to
get medical treatment. Claimant's testimony at trial, howev-
er, was to the contrary; he stated that Mr. Newstrand "told
me to go to the doctor a.nd that slip was enough for the
company to pay the bills." Claimant again went to see Dr.
West, he was not charged for the treatment, so he assumed
that the Company paid for it. Claimant testified at trial
that after the 1974 accident, he had "a burning sensation
down along side of the legs." At times, he stated, he could
not even walk. Apparently though, from claimant's "Service
R-ecord," he did not miss any work because of the 1974 acci-
dent. He worked until November 28, 1975, and was then laid
off.
In 1976, while still laid off, Mr. Wassberg went in to
talk to Tom Bugni who was at the time a claims officer in the
industrial accident office for the Anaconda mines. He went
in at that time because he was so "crippled that [he] could
hardly move." He told Mr. Bugni of the 1974 accident and
requested further medical care. Bugni authorized medical
care at the Company's expense. At the 1976 examination,
claimant curiously told the doctor that his injury was from
an accident where "I was climbing a ladder, and. the Ladder
pulled loose, and I fell down a raisen--the accident that
occurred in 1973 not 1974.
After receiving medical treatment in 1976, claimant
continued to be laid off until August 10, 1979. He then was
called back to work and remained employed until again laid
off on June 21, 1981. This action arose in 1982. Claimant's
counsel wrote to Anaconda alleging that claimant was continu-
ing to have problems with his back stemming from the 1974
injury, and requesting further medical care and compensation
under the Workers' Compensation Act. The claims officer
denied that the Company had knowledge of any injury except
the 1973 injury for which Wassberg had already received com-
pensation. As to any other accident, the Company denied
liability for compensation because no claim had been filed
within the one-year statute of limitations period provided
for by section 39-71-601, MCA.
Claimant's reply contended that although no formal
claim for compensation had been filed, the Company
nonetheless knew about the injury because of the accident
report and by the fact that it had paid the medical bills
incurred shortly after the accident and for subsequent
treatment in 1976. These facts, the claimant a.sserted,
showed either that the Company had accepted liability, or the
statutory period was waived. The Company did not change its
position.
The matter came to trial on September 14, 1983. At
trial, Mr. Wassberg testified that his understanding about
the procedures necessary to perfect a Workers' Compen.sation
claim was that "as long as they filed the industria.1 slip on
the hill that you were covered for the rest of your life. I
'
He testified that he was surprised that this was not the
case, stating l1 . . . when the law came out we didn't think
nothing about that we had to refile or nothing. I
' Mr.
Wassberg further stated that no one had. ever told him that
his 1974 claim would not he honored, including Mr. Bugni,
whom he talked to in 1976. Mr. Wassberg did not testify to
any specific misrepresentations made to him that led him to
these beliefs.
On cross-examination, Mr. Wassberg admitted that he had
filed a previous claim for compensation, separate from any
medical benefits, on the 1973 injury. As to any claim for
compensation for the 1974 injury, claimant testified as
follows:
"Q. [By Mr. McKeon] Well, the question
is or the--You did not file a claim for
compensation after the 1974 injury; did
you?
"A. NO, I never did.
"Q. You haven't filed. a claim to this
day?
"A. NO, I haven't."
The Workers' Compensation Court held for Mr. Wassberg.
It found that; "[tlhe claimant has satisfied the requirements
of the Workers' Compensation Act, section 39-71-601, MCA and
the employer is estopped from denying the claim on that
basis. " The court cited the six elements of equitable
estoppel set forth in Lindblom v. Employers Liability Assur-
ance Corp. (1930), 88 Mont. 488, 295 P. 1007 and applied them
to the findings. In regard to those elements, the court
stated:
"Here the conduct of the employer is as
follows : Newstrand knew of claimant ' s
injury, but at no time informed claimant
of the need to file a claim. Likewise,
when claimant visited with Bugni some two
years later, Bugni never advised claimant
of the necessity to file a claim, through
the evidence clearly shows that the
employer knew of claimant's seeking
medical care for his injury. Clearly, 1
and 2 of the Lindblom test is met."
The court also found the other four factors of Lindblom were
met.
The parties raise the following issue on appeal:
Did the Workers1 Compensation Court err in holding that
the doctrine of equitable estoppel prevents the employer from
asserting the statute of limitations provided in section
39-71-601, MCA.?
Initially we must reiterate the standard of review in
matters such as this. We look at the Workers' Compensation
Court's order, and its findings and conclusions, in two ways.
As to questions of fact, we are limited to examining the
record to determine whether it contains substantial credible
evidence to support the court's findings. If this quantum of
evidence is in the record, we will defer to the trier of
fact's resolution of the factual dispute. Ridenour v. Equity
Supply Co. (Mont. 1983), 665 P.2d 783, 40 St.Rep. 1012; wise
v. Perkins (Mont. 1983), 656 P.2d 816, 40 St.Rep. 1. If it
is a question of law, or how particular findings of fact
apply to the law, our scope of review is not so limited. In
such a case, the appropriate standard of review is simply
whether the lower court's interpretation of the law is
correct. We are not bound by the lower court's conclusion
and remain free to reach our own. Sharp v. Hoerner Walforf
Co. (1978), 178 Mont. 419, 584 P.2d 1298; Anderson v.
Carlson's Transport (1978), 178 Mont. 290, 583 P.2d 440. he
issue in this case is one of law. We accept the following
relevant findings of fact made by the lower court:
"6. On July 22, 1974 while in the course
and scope of his employment with the
defendant, claimant was struck on the
back by a rock which fell from a. wal-1.
(Claimant's testimony; Exhibit No. 1) .
At the time, claimant was working in the
Steward mine. Claimant reported the
incident to his boss, a man by the name
of C. Newstrand. Other than reporting
the incident to Newstrand, claimant did
not discuss the incident with any repre-
sentative of the employer until he talked
with Tom Buqni of the Company.
"7. Bugni suggested claimant see a
doctor, which claimant did. At no time
did the claimant ever pay any medical
bills related to his injury. The employ-
er did. pay for the medical expenses
related. to the 1974 incident.
"8. At the time of trial, the claimant
had not filed a claim for compensation.
"9. Exhibit No. 1 is titled Report of
Alleged Injury. It is a record of the
employer, signed by claimant's boss on
July 22, 1974. That exhibit discloses
that claimant informed Newstrand that he
had been hit on the back by a falling
rock on July 22, 1974 while working. It
described the injury as 'bruises.' It
notes the parts of body injured as the
upper back. The information in Exhibit
No. 1 was known to the employer as early
as 1974.
"10. Claimant has never requested the
Division of Workers ' Compensation to
waive the period for filing a claim for
compensation pursuant to Section
39-71-601, MCA."
We disagree with the lower court's application of these facts
to the law.
Section 39-71-601, MCA (and, as cod.ified at the time
claimant's injury occurred, R.C.M. 1947, 92-601) sets forth
the statute of limitations for workers' compensation
proceedings:
"Statute of limitations on presentment of
claim-waiver. (1) In ca.se of personal
injury or death, all claims shall be
forever barred unless presented in writ-
ing to the employer, the insurer, or the
division, as the case may be, within 12
months from the date of the happening of
the accident, either by the claimant or
someone legally authorized to act for him
in his behalf. (2) The division may,
upon a reasonable showing by the claimant
of lack of knowledge of disability, waive
the time requirement up to an additional
24 months."
The filing requirement is mandatory, and compliance
with the time limits is essential to the action. Miller v.
City of Billings (1976), 171 Mont. 91, 555 P.2d 747. We
recognize that this provision, like all others in the
Workers' Compensation Act, is to be construed liberally in
favor of the claimant. Section 39-71-104, MCA; Bowerman v.
Employment Security Commission (Mont. 1983), 673 P.2d 476, 40
St.Rep. 2062; cf. Chmielewska v. Butte & Superior Min. Co.
(1927), 81 Mont. 36, 261 P. 616, Grosfield, Montana Workers'
Compensation Man.ua1 (1979), S5.22. But this liberal
construction does not allow us to disregard clear statutory
provisions or to use it to the point of repealing or
abrogating a statute. Grimshaw v. Larson (Mont. 1984), 691
P.2d 805, 41 St.Rep. 2123; Klein v. Ind. Wholesale Assoc.
Grocers (1975), 167 Mont. 341, 538 P.2d 1358; Davis v.
Industrial Accident Board (1936), 92 Mont. 503, 1 5 P.2d 919.
.
The exception provided for in (2) of section 39-71-601,
MCA, is not at issue here. Claimant-respondent raises it on
appeal but we do not find in the record factual support for
this argument, and we will not consider it when it was not
raised below.
The exception to 39-71-601(1), MCA is that the one year
limitation may be waived by the employer by acts or
representations giving rise to an equitable estoppel. In.
Lindblom v. Employers Liability Assurance Corp. (1930), 88
Mont. 488, 295 P. 1007, we set forth the elements necessary
to find an estoppel:
"Generally speaking, the following are
the essential elements which must enter
into and form a part of an equitable
estoppel in a.11 of its applications: '1.
There must be conduct--acts, language, or
silence--amounting to a representation or
a concealment of material fact. 2.
These facts must be known to the party
estopped at the time of his said conduct,
or at least the circumstances must be
such that knowledge of them is
necessarily imputed to him. 3. The
truth concerning these facts must be
unknown to the other party claiming the
benefit of the estoppel, at the time when
it wa.s acted upon by him. 4. The
conduct must be done with the intention,
or at least with the expectation, that it
will be acted upon by the other party, or
under such circumstances that it is both
natural and probable that it will. be so
acted upon. * * * 5. The conduct must
be relied upon by the other party, and,
thus relying, he must be led to act upon
it. 6. He must in fact act upon it in
such a manner as to change his position
for the worse; in other words, he must so
act that he would suffer what he has done
by reason of the first party being
permitted to repudiate his conduct and to
assert rights inconsistent with it.'" 88
Mont. at 494, 295 P. at 1009.
A common situation where estoppel arises is:
". . .where the injured worker was paid
by his employer sums equivalent to
Workers' Compensation benefits which in
effect lulled the injured worker into
failure to timely file for Workers'
Compensation."
Bowerman v. Employment Security Commission, 672 P.2d at 478,
40 St.Rep. at 2064, citing Frost v. Anaconda Co. (~ont.
1982), 645 P.2d 419, 39 St.Rep. 879 and Jaeger v. Stauffer
Chemical Co. (Mont. 1982), 645 P.2d 942, 39 St.Rep. 919.
This exception does not apply here. First, in Frost, we held
that ". . . [wle do not believe medical payments to be suffi-
cient compensation to warrant tolling the statute of limita-
tions [in this instance] ." 645 P.2d at 422, 39 St.Rep. at
882. Thus, in this case, the payment of claimant's medical
bills does not estop the Anaconda Company from raising the
statute of limitations bar. See also Vetsch v. Helena
Transport and Storage Co. (1969), 154 Mont. 106, 460 P.2d
757, (payment of medical bills does not dispense with the
necessity of a claim for compensation by an injured worker).
We have also held that certain "payment plans" for injured
workers separate from the Workers' Compensation Act's
payments can estop an employer from asserting the one year
bar. In Jaeger v. Stauffers Chemical Co, supra., the
claimant was injured on the job and could not perform his
normal duties. The employer had a policy of asking injured
workers to stay on the payroll, if necessary, at less
strenuous tasks, in order to reduce the cost of lost-time
accidents. Claimant there continued to work at a less
strenuous task for the same amount of pay he received before
and did not file an accident claim. We held there that this
policy was a "plan" and resulted in a sufficiently implied
recognition of the claimant's disability so as to estop the
employer from asserting the one year bar. The rationale of
Jaeqer does not apply here, nor does the result. Here,
claimant continued to work at full pay, but the record is
bare of any evidence that he did so at a reduced level of
work, or that he did not perform any of his assigned duties.
Specifically addressing the Lindblom el-ements, we find
that, as a matter of law, the first was not met. The
Workers' Compensation Court held that "Newstrand [claimant's
boss] knew of claimant's injury, but at no time informed
claimant of the need to file a claim." Additionally, the
court found that "when claimant visited Bugni some two years
later, Bugni never advised claimant of the necessity to file
a claim." Claimant argues that this "silence," in the face
of notice of the injury, is sufficient to meet the first
element. Me disagree. A review of several recent cases
addressing the same issue illustrates why.
Frost v. Anaconda Co. (Mont. 1982), 645 P.2d 419, 39
St.Rep. 879, is a case almost on all fours with this one.
There, the claimant, also a miner, slipped and fell off an
ore shovel at the Anaconda Company's Berkely Pit mine. The
claimant at that time did not feel he was injured and com-
pleted the rest of his shift. At the insistence of his boss,
he filed a report on the incident. No report of the accident
was forwarded to the Anaconda claims office since the
claimant did not require any immediate medical attention.
More than a year after the accident, claimant began to lose
the function of his legs due to the injury. He filed a claim
and it was denied by the Company because the statute had run.
The Workers' Compensation Court then:
". . . found that the Company should have
known claimant was eligible for workers'
compensation and that its silence
regarding the ... facts amounted to a
concealment of material facts." 645 P.2d
at 422, 39 St.Rep at 881.
We affirmed the Workers' Compensation Court in that case -
not
on the grounds that the elements of equitable estoppel were
met, but rather that the claimant's receipt of payments under
the Company's METRO plan tolled the statute--in the same
manner as discussed above. Frost first presented us with the
question of just what "silence1' in this circumstance is.
Though we did not answer it there, subsequent cases further
developed this concept.
In Devlin v. Galusha, Higgins & Galusha (~ont.1982) ,
555 P.2d 979, 39 St.Rep. 2378, we rejected a claimant's
contention that the employer "should have informed" the
claimant about her right to file a claim. There, the claim-
ant was an office worker who twisted her knee on the job.
She required subsequent medical treatment, but was able to
return to work. Shortly after returning to work, she quit
for other reasons. Before leaving, her supervisor asked her
whether she wanted to file a claim. She replied: "Good God.,
no." Six years later, she did file a claim for the injury.
Citing the general rule that " [elstoppel has no application
where the omission of the party claiming estoppel brought
about the problem." 655 P.2d at 981, 39 St.Rep. at 2381,
citing, First Security Bank of Bozeman v. Goddard (1979), 181
Mont. 407, 417, 593 P.2d 1040, 1046, we held that her
employer did nothing to encourage her not to apply for
benefits. Secondly, we rejected claimant's argument that,
"her employer should have made greater efforts to inform her
of her rights." In the support of that conclusion we cited
the rule set forth in Ricks v. Teslow Consolidated (1973),
162 Mont. 469, 512 P.2d 1304:
". . . the duty is upon the claimant to
file his claim, not upon the insurer to
solicit claims. The Workmen's Compensa-
tion Act has not changed the principle
that he who asserts a right has the
burden of proof or the burden of proceed-
ing. " 162 Mont. at 483, 512 P.2d at
1312.
In Devlin we simply held that the employer's inquiry in
light of knowledge of the injury was sufficient to discharge
its duty under the Workers' Compensation Act, and that under
the circumstances, because Ms. Devlin ''chose not to pursue
the matter" and that the employer "did nothing to encourage
her not to apply for benefits" 655 P.2d at 981, 39 St.Rep. at
2381, there was no estoppel. The question of whether such
affirmative action or inquiry is necessary, was not presented
as in the instant case. Devlin is helpful here in two
regards. First, it stands for the continuin9 viability of
the Ricks rule quoted above. Parenthetically, as to that
rule, it must be noted that it wa.s the controlling case -
at
--
the time Mr. Wassberg's accidents occurred. Second, it shows
that for an estoppel to arise, more than mere mention of
availability of a claim, or simple inquiry by the employer,
is necessary--a holding that implies the type of "silence1'
that is at issue here, is not a firm ground on which to find
an estoppel.
In McKaskle v. Industrial Com'n. of Arizona (AZ. 1982),
659 P.2d 1313, the Arizona Supreme Court discussed the
doctrine of equitable estoppel in workers' compensation
situations. The court stated:
"Questions of estoppel can a-rise in a
wide variety of situations. Most common
are those in which the employer or carri-
er says to the injured employee in ef-
fect, 'Don't worry we'll take care of
you,' thereby 'lulling' the employee into
inaction until the filing period has
passed." 659 P.2d at 1315, 1316.
The issue presented in McKaskle did not involve a
"claimant's unilateral mistake," 659 P.2d at 1316. This is
an important distinction, between a claimant's mistake and an
employer-induced mistake, 659 P.2d at 1316, citing 3A Larson,
Workmen's Compensation Law 578.47. As an example of an
employer-induced mistake, the Arizona court cited our case of
Levo v. ~eneral-Shea-Morrison (1955), 128 Mont. 570, 280 P.2d
1086. Levo was apt authority for McKaskle because the "in-
ducement was the same--a representation by a claim officer to
a claimant that he has "no claim" as a matter of law. In
both cases, this assertion (in both cases, legally
incorrect), induced the claimant into foregoing further
action.
Finally, in our most recent case on this point, we
further elaborated on the situation where an estoppel arises.
In Davis v. Jones (Mont. 1983), 661 P.2d 859, 40 St.Rep. 570,
the claimant's husband, a ranch hand, became unconscious
while chipping a water hole on an ice covered reservoir. His
employer sent him home and suggested he see a doctor. He
instead went to see some friends. That night he died at home
of a heart attack. The exchange that occurred between the
employer and the decedent's wife subsequent to his death was
the following:
"On February 17, 1980, the claimant went
to the employer for her husband's last
paycheck. The employer gave the claimant
her husband's last check plus a two
hundred dollar bonus. While they were
discussing possible insurance coverage,
the employer told claimant that he had no
responsibility because the husband had
died at home." 661 P.2d at 860, 40
St.Rep. at 571.
We held that the employer was estopped in that circumstance
because :
"The doctrine of equitable estoppel
applies where an employer or insurer has
taken some positive action which either
prevents a claimant from filing a timelv
claim or leads him reasonably Eo belie&
he need. not file such a claim. [citing
cases] Equitable estoppel is a flexible
principle which should be applied when an
employer or insurer misleads a claimant
by foisting onto the claimant a
misinterpretation of the Workers' Compen-
sation Act." 661 P.2d at 860, 40 St.Rep.
at 571-572.
We have already held that mere notice of an injury does
not put upon an employer a duty to solicit a claim. The duty
to act first i.s - on the employer, it is on the employee.
not
This case involves a fine balancing of respective
duties under the Workers' Compensation Act. On the one hand,
there are the rights of employers to be protected from old
claims that are difficult, or impossible to investigate.
Also at stake is the rule that employers should not be sad-
dled with the duty to actively solicit claims--this involves
more a question of policy than interpretation of law, and we
do not feel the courts are the appropriate place to make this
determination. Finally, we must recognize that a finding of
estoppel brings with it an "attendant implica.tion of bad
faith." Jaeger v. Stauffer Chemical Co. 645 P.2d at 945, 39
On the other hand, claimants are at a comparative
disadvantage to employers or insurers in legal sophistica-
tion. This situation gives the employer many opportunities
to mislead. To protect the rights of often innocent
employees, we must set down a rule that insures them good
faith in relations with employees and claimants.
This case is not an appropriate one to find that the
silence as referred to in Lindblom, supra, of an employer
estops it from asserting the statute of limitations. First,
claimant testified that he had an understanding that he would
be protected for the "rest of his life1' if he filed the
accident report. He did not attribute this understanding to
any a.ssertion by the employer or any of its agents. If we
were to allow mere understandings to serve as a basis for
estoppels, we would be opening the door to a multitude of
claims that employers would be hard-pressed to defend
against. In this case, the employer was unable to present
any evidence, other than by cross-examination, to rebut
claimant's understanding. The fairest rule, to all parties
would be to require the claimant to be able to attribute the
understanding to some assertion of the employer or an agent
before an estoppel may arise.
Secondly, claimant's conversation with Mr. Bugni oc-
curred two years after his injury and one year after the
statute had run. Claimant does not show how this is
relevant. It might be, from an evidentiary stand.point, to
back up the claim of an attributable assertion prior to the
running of the statute, but no such claim was made and thus,
standing on its own, any statement made by Mr. Bugni does not
meet the claimant's burden.
Finally, then, we are left with the rule enunciated
above. Claimant had a duty to act first. The silence in
Lindblom, supra, does not put upon the employer a duty to
pursue the employee's claim for him. He knew of the
availability of the compensation claim proceeding, as evi-
denced by the filing of a compensation claim in 1973. As to
the 1974 injury, he did not file a compensation claim. It
was his mistake. The employer was not put in a situation
where it should have spoken out and thus should not be held
liable for any silence that occurred.
The order of the Workers' Compensation Court is
reversed.
We concur:
n
Justices
Justice John C. Sheehy, dissenting:
I dissent vigorously from this unjust treatment of an
unwary employee who had full reason to trust his employer to
protect his compensation rights.
Arthur Wassberg was an employee of Anaconda, off and on
since 1956. His employment record indicates that he quit
several times as a stope miner because "he didn't like the
place." This was not unusual among stope miners in Butte,
who frequently relied on their native senses to get out of
dangerous places. A high numher of graves in the Butte
cemeteries are filled with the remains.of miners who were not
so discriminating. Even so, Arthur Wassberg risked injury at
least two too many times.
On June 30, 1.973, he was injured in the Steward mine.
He fell from the ladder while he was installing stulls (the
lumber framework that held back the ever-pending rock).
While he was not hospital-ized for his injury, he was examined
by Dr. West., a Butte chiropractor, and was off work from July
1, 1973 to July 22, 1973 inclusive.
FJassberg gave only verbal notice of his June 30, 1973
injury to his employer. Thereafter - employer -
the did
everything necessary - - -to obtain his benefits.
for him They
provided an employer's first report of occupational injury,
prepared by Tom Bugni. They also prepared his claim for
compensation to be filed with the Division of Workmans'
Compensation. On July 20, 1973, by letter to the then
Industrial Accident Board, Bugni, for the Anaconda Company,
enclosed to the Industrial Accident Board t.he employer's
first report of injury, the claim for compensation, and two
receipts for compensation, showing that Wassberg had been
paid $156 for the period from Ju1.y 1, 1973 to July 1.4, 1973
and the further sum of $78 for the period to July 22, 1973.
It is important to note that with respect to the June
30, 1.973 injury, all that Wassberg did in order to get full
compensation benefits was to give verbal notice to the
company. Its agent, Bugni, took care of the rest.
On July 22, 1974, at 10 p.m., a rock fell. from the
hanging wall of the stope and struck Wassberg on the back.
He sustained bruises from the incident. He gave notice of
the incident to his shift boss, Newstrand. Newstrand filled
out a "report of alleged injury" showing that the incident
had been reported to him at 12:30 a.m. on July 22, 1974.
(Wassberg was apparently working the nightshift , and the
shift boss did not realize that at 12:30 a.m., it was
actually July 23, 1974.) Wassberg was not advised to get
medical treatment relating to that incident.
On April 17, 1968, Wassberg had been examined by Dr.
Gilboy on behalf of the company. The x-ray reports on his
examination showed no significant bony abnormality. On March
23, 1977 he was examined by Dr. Jack Davidson on behalf of
the A-naconda Company. Dr. Davidson reported that Passberg
suffered pain on bending down his left leg, that he had a
sprain in his low back, and had radicular pain down his left
leg.
In 1976, Wassberg returned to Bugni. Wassberg felt he
wa.s crippled so that he could hardly move. Bugni told him to
go to get medical help in connection with his condition.
Wassberg went to Dr. Blom and Dr. Davidson, as well as Dr.
West. It is reported that the Anaconda. Company paid the
5ills for that medical attention.
It was not until 1982 that Wassherg discovered that the
Anaconda Company did not recognize his claim for compensation
benefits for his physical injuries. Wassberg testified to
his understanding that as long as he filed the "industrial
slip" on the hill, that he was covered for the rest of his
life as to that injury.
The probable reason that Wassberg made no claim for
compensation benefits prior to 1982 is that he continued in
employment by the Anaconda Company at various jobs. He
continued to work at the Kelly until July 10, 1975 when he
was relieved because he "loses too much time. " On July 22,
1975 he was reemployed at the Kelly until November 9, 1975
when he was transferred to the leach department of the
company. He worked at the leach department until November
28, 1975 when he was let go because of "reduction in force."
Ye was off for approximately four years when he returned to
work at the leach plant on September 10, 1979. He was
transferred on October 2, 1979 to the Kelley mine where he
worked until June 21, 1981 when he was laid off because of a
reduction in force.
Unfortunately, the record before us does not indicate
what he was doing during the lapse of time from November 28,
1975 until September 10, 1979.
The sole objection of the Anaconda Company to Wassberg's
claim, and the reason given by the majority for the decision
here, is that his claim is barred by $ 39-71-601, MCA, which
S
requires a written cl-aim for compensation within one year of
the accident.
Under the records of this case, the Worker's
Compensation Court correctly decided that Anaconda was
estoppel from raising the bar of S 39-71-601, MCA, by virtue
of our decision in Lindblom v. Employers Liability Assurance
Corp. (1930), 88 Mont. 488, 295 P.2d 1007. The finding of
the Workers' Compensation Court is as follows:
"Here the conduct of the employer is as follows:
Nestrand knew of claimant's injury, but at not time
informed claimant of the need to file a claim.
Likewise, when claimant visited with Bugni some two
years later, Bugni never advised claimant of the
necessity to file a claim, through the evidence
clearly shows that the employer knew of claimant's
seeking medical care for his injury. Clearly, 1
and 2 of the Lindblom test is met. The claimant
believed he had done all that was necessary to file
his claim and therefore he clearly did not file a
claim, as he was unaware of this necessity. This
satisfied number 3. The employer knew, as
knowledge is certainly imputed to it through its
agents, that the failure of claimant to file a
claim within one year would jeopardize or possible
preclude his entitlement to benefits. Claimants
reliance upon the employer's conduct was in the
nature of not acting as opposed to a positive act.
Here he did not file a claim though the employer
knew of its necessity but failed to inform the
claimant of same. As to the sixth criteria,
clearly the claimant's failure to file a claim
worked to his detriment, as evidence by the fact
that the employer now defends against claimant's
claim by maintaining he is entitled to no benefits
because of claimant's failure to file."
The empl.oyment record of Wassberg shows that for more
than a full year fol.lowing the July 22, 1974 accident, he
continued to work for the company at various of its
properties at Eutte. Of course he could have no claim for
compensation benefits for that time because he was receiving
wages from the company. His layoff on November 28, 1975 was
because of reduction in force. Thus we have the seemingly
inequitable situation of an employee receiving regular wages
during the period of time that he could have presented a
written claim to the Workers' Compensation Division for his
benefits. A few months after the time for fil.ing his claim
expired, he was laid off under a reduction in force.
We apparently have here a situation where the empl.oyer,
knowing that Wassberg had suffered an industrial accident,
had him on the payroll on jobs that he could perform through.
the period of time that he could have claimed benefits. We
have also the further history of the prior industrial
accident where the company itself took care of filing all of
the necessary papers for the Workers' Compensation Division,
including its own report of injury, and the claimant's cl-aim
for compensation. These factors speak to me of estoppel.
The element of fraudulent design need not be present to
work an estoppel against an employee nor must there be an
actual and fraudu1.en.tintention to deceive the other party.
Lindblom, supra. The Workers' Compensation Court found it
enough to esta.blish estoppel that in this case the employer
failed to inform the employee of the necessity of filing his
claim for compensation benefits. I would sustain the
Workers' Compensation Court in its decision on this case and
affirm.